Fourth Department: Interest in Architecture and Historic Preservation Not Sufficient to Confer Standing Under SEQRA

In Schmidt v. City of Buffalo Planning Bd., 174 A.D.3d 1413 (4th Dept., July 31, 2019), the petitioner, Terrence Robinson, filed suit to prevent the demolition of an architecturally significant apartment complex, claiming that the City Planning Board failed to comply with the State Environmental Quality Review Act (SEQRA) when it adopted a negative declaration of environmental significance on an application to redevelop the site. The appellate court affirmed the lower court’s order and judgment, dismissing Mr. Robinson’s claims for lack of standing.

Buffalo City Hall

In its opinion, the Court reminded that “[t]hose seeking to raise SEQRA challenges must establish both an environmental injury that is in some way different from that of the public at large, and … that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA.” 174 A.D.3d at 1413 (internal citations and quotations omitted). Petitioner, an architecture enthusiast, claimed he would suffer sufficient injury to confer standing upon him because he had a specific interest in visiting and photographing the apartments, and in historic preservation generally. The appellate court rejected petitioner’s argument, writing that “[i]nterest and injury are not synonymous … A general — or even special — nterest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case. Here, petitioner’s appreciation for historical and architectural sites does not rise to the level of injury different from that of the public at large for standing purposes.” Id.

The injuries Mr. Robinson alleged in support of his standing argument are reminiscent of those successfully advanced by the petitioners in Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297 (2009). There, the individual petitioners were members of an organization dedicated to the use and appreciation of the Albany Pine Bush, an environmentally significant region in Albany, New York. The petitioners sued the City’s Common Council to prevent a hotel development near the Butterfly Hill area of the Pine Bush, a known habitat of the endangered Karner blue butterfly and other protected and endangered species. The New York Court of Appeals ruled that the individual petitioners demonstrated sufficient injury for standing under SEQRA because they use the Pine Bush for recreation, study, and to enjoy the unique habitat there and, therefore, would be harmed in a manner different from the public at large if that ecosystem were disrupted by the proposed development. 13 N.Y.3d at 921-22.

The Court of Appeals decision in Save the Pine Bush, Inc., is not discussed or cited in the Fourth Department’s opinion in Schmidt. Nonetheless, the differing outcomes on the issue of standing beg the question: When does a petitioner’s “interest” in an environmental resource cross the threshold from a mere interest into something sufficient to confer standing? Similar to the petitioners in Save the Pine Bush, whose injury derived from their interest in visiting and studying an environmentally significant area, Mr. Robinson’s alleged injury arose from his interest in visiting and photographing an architecturally significant apartment building. For admirers of great architecture, is the loss of an architecturally significant building not the same as the extinction of an endangered species for a lover of nature?

A copy of the Court’s decision can be accessed on the Fourth Department’s website: http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2019/07-31-19/alpha.shtm.